At issue in this case is whether the plaintiff seaman can recover on negligence grounds from his employer for injuries sustained while dragging a cable across a wooden dock with a warped plank. The plaintiff fell on the dock while he was walking backwards dragging the cable. He and two other Moran captains were dragging the cable at the time. The plaintiff alleges that the defendant was negligent in two ways: (1) Moran required Lombas to perform his job in a dangerous manner when other safer methods were available, and (2) Moran failed to provide a reasonably safe place to work. Specifically, Lombas alleges that the cable transfer could have been done more safely by using one of the following alternatives: (1) moving the JUDY alongside the HEIDI to eliminate the necessity of dragging the cable across the pier; (2) asking a deckhand to assist the three captains in the manual transfer; (3) using the capstan; or (4) using a cherry-picker, which is a type of crane. The defendant denies that it was negligent and argues that the plaintiff may not recover for his injuries because his own negligence was the sole cause of the accident.

Following a three-day bench trial on liability
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and after reviewing all of the submissions of the parties and having assessed the credibility of all of the witnesses, the Court makes the following findings of fact and conclusions of law:

3. Lombas began working for Moran in February 1988 (UF P 9.) On April 8, 1988, Lombas was employed by Moran and was receiving pay from Moran at a Captain's rate. (UF PP 3, 4.) At the time he fell, Lombas had been going to sea for at least 24 years and had sailed as a tug captain since 1975. (UF P 6.)

4. On April 8, 1988, Moran was the operator of the tugs JUDY MORAN and HEIDI MORAN. (UF P 7.)

11. On April 8, 1988, the JUDY arrived at the Moran Shipyard in order to pick up these cables from the HEIDI. (UF P 21.) The JUDY docked on the south side of the finger pier, which juts out into the water roughly perpendicular to the shore, across from the HEIDI. (UF P 18.) The dock was about 45 feet wide. (DiNapoli Tr. Test.)

12. Each cable was two and one-quarter inches in diameter, made of steel, and 30 to 40 feet long. (Savoie Dep. at 32; Lombas 1990 Dep. at 80.) The weight of each cable was estimated to be a maximum of 374.4 pounds and a minimum of 260 pounds; however, 260 pounds is the more reasonable estimate for the cable at issue. (DiNapoli Tr. Test.; Borello Tr. Test.) The cable also had a socket at one end and a thimble at the other, which weighed 60 to 70 pounds and 20 pounds, respectively. (DiNapoli Tr. Test.; Borello Tr. Test.) In total, the cable plus its fittings weighed approximately 340 pounds. (Borello Tr. Test.; DiNapoli Tr. Test.)

13. On April 8, 1988, the Chief Engineer and a deckhand from the JUDY went to the HEIDI to help transfer the cables. (UF P 24.)

14. Lombas, Guidry, and Savoie remained on the pier to receive the cables. (UF P 25.)

15. The three captains undertook the cable transfer as a joint operation. (Savoie Dep. at 75.)

16. Lombas, Savoie, and Guidry grabbed a section of one of the cables and dragged it across the pier toward the JUDY on the other side of the dock. (UF P 26.)

17. These three men then put that section of the cable down on the surface of the pier and grabbed another section, similarly pulling it towards the JUDY. (UF P 27.)

18. While pulling the second section of the cable, Lombas was walking backwards and Guidry and Savoie were walking forwards toward the JUDY. (UF P 28.)

19. Lombas tripped and fell while walking backwards with the cable. (UF P 29.) After he fell, Lombas got up and continued working, and the three men finished transferring the cable. (Guidry Tr. Test.; Savoie Dep. at 26.)

6. Under the principles of comparative negligence, however, a seaman's recovery will be reduced if he knew or should have known of a safer alternative. Webster v. United States, 1995 U.S. Dist. LEXIS 8499, 1995 WL 368429, *7 (S.D.N.Y. 1995) (citing cases); Passantino v. States Marine Lines, Inc., 299 F. Supp. 1252, 1255-56 (S.D.N.Y. 1969).

7. It is well-established that if the plaintiff's own negligence is the sole cause of the injury--that is, if the defendant was not negligent--the plaintiff may not recover. Sotell v. Maritime Overseas, Inc., 474 F.2d 794, 796 (2d Cir. 1973); Webster, 1995 U.S. Dist. LEXIS 8499, 1995 WL 368429, *7 (citing cases).

8. A seaman may recover on negligence grounds when his employer requires him to perform a job "in a dangerous manner when other safer methods are readily available." Diebold, 805 F.2d at 58.

13. Plaintiff's alternative argument that he was provided with an unreasonably dangerous place in which to work also has no merit.
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In negligence claims under the Jones Act, the plaintiff must prove the following by a preponderance of the evidence: "(1) that a dangerous condition actually existed on the ship; (2) that the defendant shipowner had notice of the dangerous condition and should have reasonably anticipated the plaintiff might be injured by it; and (3) that if the shipowner was negligent, such negligence proximately caused the plaintiff's injuries." Diebold, 805 F.2d at 58 (citing Mattivi v. South African Marine Corp., 618 F.2d 163, 168 (2d Cir. 1980)); Webster, 1995 U.S. Dist. LEXIS 8499, 1995 WL 368429, * 7. The plaintiff failed to prove each of these elements by a preponderance of the evidence.

14. The warped board on the dock did not present an dangerous condition. Courts have commonly declined to hold shipowners liable when injured employees fail to establish that the allegedly dangerous condition was different from what a seaman would ordinarily and reasonably expect to find. See, e.g., Jones v. Moore-McCormack Lines, Inc., 291 F. Supp. 888, 890 (S.D.N.Y. 1968) (declining to hold a shipowner liable for a seaman's injuries sustained when he tripped over a coiled cable). Warping is not an unusual condition on docks, and certainly one an experienced mariner like Lombas should expect. There is no evidence that the condition of the dock was unusual or unreasonable.

18. The defendant further asserts that even if it were negligent to transport the cables manually across the dock, Lombas may not recover because a captain's negligence serves as an absolute bar. The defendant relies on Judge Learned Hand's opinion in Walker v. Lykes Bros. S.S. Co., Inc., 193 F.2d 772 (2d Cir. 1952), where the Court of Appeals held that a master could not recover for injuries sustained from a defective file cabinet because the master knew the cabinet was defective, had the responsibility to see that it was fixed, had ample opportunity to do so, and failed to do so. Under the Walker doctrine, an employee cannot recover for his injuries when he breaches "a duty which [he] has consciously assumed as a term of his employment." Id. at 773. The defendant argues that even if the cable transfer operation was negligently conceived, Lombas may not recover for any injuries sustained during that operation because he breached his duty as the ship's master to assure the transfer was conducted safely.

Although it is not necessary to apply the Walker doctrine in this case, the court notes that the doctrine is of questionable continued viability in this Circuit. See McSpirit v. Great Lakes Int'l, 882 F. Supp. 1430, 1432 (S.D.N.Y. 1995) (noting that "Walker's continuing viability is doubtful"). In Dunbar v. Henry Du Bois' Sons Co., Inc., 275 F.2d 304, 306 (2d Cir.), cert. denied, 364 U.S. 815, 81 S. Ct. 45, 5 L. Ed. 2d 46 (1960), two of the three judges on a panel of the Court of Appeals expressly rejected the Walker doctrine as "incompatible with the congressional mandate that contributory negligence and assumption of risk shall not bar recovery in a Jones Act case." Id. at 306. Even if the doctrine remains viable, however, it is questionable whether it could bar recovery in this case. The facts of who the JUDY's master was on April 8, 1988 are very much in dispute. Although the plaintiff relies on his own testimony and that of Savoie to state that Savoie was in command of the JUDY, Savoie was only 27 years old, not nearly as experienced as Lombas, and unlikely to be entrusted with the task of being the master of the JUDY for the purpose of towing the barge CARIBBEAN. The testimony of both men appears to be self-serving. The testimony of Capt. Guidry appeared far more reasonable and straight-forward when he testified that Capt. Lombas was in charge of the JUDY. In any event, even if Savoie were in charge of the JUDY on April 8, 1988 when Lombas was on board the JUDY, even Savoie testified that the cable transfer operation was a joint operation among the three men. See Savoie Dep. at 75 (stating that it was a "joint decision" to ask for the cherry-picker and that "[the cable transfer] was a joint job.").
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The facts of this case are very different from the specific employment obligations that were imposed on the master in the Walker case. It would not make sense on the facts or the law to apply the Walker doctrine in this case, and the Court has not relied upon it in finding that the plaintiff is not entitled to recover because he has failed to prove by a preponderance of the evidence that the defendant was negligent at all. Moreover, the evidence establishes that the plaintiff's injuries were caused solely by his own negligence.

Savoie Dep. at 75.

For all of the foregoing reasons, the defendant's motion for judgment at the close of all the evidence is granted, and judgment is ordered to be entered for the defendant dismissing the plaintiff's complaint with prejudice.

The foregoing constitutes the Court's Findings of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52(a).

SO ORDERED.

JOHN G. KOELTL

United States District Judge

Dated: New York, New York

September 4, 1995

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